Tue | Aug 11, 2020

Court quashes law forcing attorneys to police clients

Published:Saturday | August 1, 2020 | 12:20 AMDanae Hyman/Staff Reporter

Jamaica’s legal fraternity has lauded the Court of Appeal’s decision on Friday to quash the much-disputed 2013 amendments to the Proceeds of Crime Act (POCA) that lawyers said would force them to police their clients.

The Jamaican Bar Association (JAMBAR) largely succeeded in its challenge of the POCA requirements that stipulated that attorneys report their clients to the Financial Investigations Division if attorneys suspected they were involved in money laundering.

JAMBAR had argued that such an amendment would be in breach of confidentiality in attorney-client relations and amounted to a conflict of interest.

The association had emphasised that while its members did not condone money laundering or the facilitation of any crime, the legislation was unconstitutional, as it failed to take into account the unique role that lawyers played in the administration of justice.

The appeal court upheld the designation of attorneys as non-financial institutions. Amendments to the Legal Profession Act were also found not to be unconstitutional.

In 2017, the Constitutional Court had ruled against JAMBAR, stating that the regime did not prohibit attorneys from loyally and properly representing their clients, but instead created a framework where lawyers could not turn a blind eye if they had reasonable grounds for knowing, or suspecting, that their clients were engaged in transactions that could constitute, or be related to, money laundering.

On Friday, the Court of Appeal ruled as unconstitutional paragraphs of POCA relating to attorneys’ obligations to report suspicious transactions. The court also struck down requirements for attorneys to reveal clients’ secrets and swept aside certain allied obligations under the General Legal Council’s enforcement regime.

“We are very happy to receive this decision from the Court of Appeal. This judgment overturns a significant aspect of the judgment of the Full Court and it is very important, because what we are seeking to do is to protect clients’ legal professional privilege,” Emile Leiba, president of JAMBAR, told The Gleaner.

“This means fundamentally that as attorneys-at-law, when a potential client comes to you with confidential information, you are bound to keep their information, and what was said to you is confidential. This legislation was seeking to remove that level of confidence to a degree.

The JAMBAR president said he was yet to digest the more than 600-paragraph judgment.

In the United Kingdom, attorneys are obligated to report suspicious transactions to the authorities. Similar regimes exist in Australia and Malaysia.

The contentious model was, however, challenged in Canada by its Law Society on the basis that it would curtail the independence of the Bar and erode lawyer-client privilege.